Nov. 7, 2011 – The Bush Administration’s handling of enemy combatants during the War on Terror underscores a distinction every lawyer faces during his or her career: The choice between what can be done and what should be done, according to Dr. Philip Zelikow, the keynote speaker Friday at the Houston Law Review’s annual Frankel Lecture.
Zelikow, former director of the 9/11 Commission and a current member of the President’s Intelligence Advisory Board, said advisers to President Bush could have bent laws and international treaties with their interpretations of what can be done rather than choosing existing legal doctrines. And, he said, it cost the United States in its standing around the world. Zelikow spoke at the University of Houston Law Review’s 16th Annual Frankel Lecture before an audience of attorneys, professors, and law students at the Doubletree Hotel.
During his lecture, “Codes of Conduct for a Twilight War,” Zelikow offered insight into the how and why President Bush approved policies that stripped “enemy combatants” of basic protections afforded under the Geneva Convention by engaging in polices that allowed torture , cruel, and degrading treatment.
“America has been at war with an elusive enemy for 10 years, and as we to try to comprehend what seems incomprehensible, we have to realize legal and political advisers as well as the entire executive branch were navigating through murky terrain,” said Zelikow. “A good lawyer can make the case that it can be done. However, the correct question is should it be done.”
Zelikow is in a unique position to examine the issues. In addition to heading the 9/11 Commission and currently acting as an intelligence adviser to President Obama, he has served in various advisory positions in each administration during the last 25 years. He is the associate dean for the Graduate School of Arts and Sciences and the White Burkett Miller Professor of History at the University of Virginia.
Concluding that the policy to torture enemy combatants was “more damaging to the United states than any other policy in the world,” Zelkow, a 1989 graduate of the University of Houston Law Center, pointed out that the groundwork for the decision to use unusual and extreme questioning techniques took place in January and February 2002 when “fear and anxiety enveloped our executive leadership.”
Profoundly fearful of more terrorist attacks, the executive branch relied on the CIA’s recommendation that such interrogation methods were uniquely necessary as well as the attorney general’s decision that such methods were indeed legal, Zelikow said. “The decision is one unprecedented in America on a moral and legal level.”
While Zelikow said the Bush Administration may not have been entirely aware of the implications of such a policy, commentator David Cole, a professor at Georgetown University Law Center, argued “making torture and cruelty and targeted killing an official part of America’s policy was blatantly and patently illegal.” Cole also advocated for a commission to be set up to review codes of conduct during war to ensure that such extreme measures do not happen in the future. To Cole, the decision was whether the benefits outweighed the costs.
Fellow commentator Mark Danner, professor at the University of California at Berkeley and Bard College, echoed the sentiment, but contended that officials may have believed they were operating in a “state of exception,” when what is illegal during times of peace can be considered legal during a time of war.
“President Bush used the notion of ‘military necessity’ as an enormous loophole,” Danner said.
Wrapping up the morning, Zelikow reiterated that the practice of torturing enemy combatants for intelligence is an issue shrouded in murky shades of gray. This is the time, he said, for thoughtful reflections on what happened and why.